1. This is an application under Section 29 (3), Orissa Agricultural Income-tax Act for a direction to the Member, Board of Revenue, Commercial Taxes, to state a case and refer the same to this Court. It arises under the following circumstances : The applicant has been assessed to agricultural income-tax for the year 1948-49 as an individual. Notice was issued in respect of assessment for the year 1949-50 also on the same basis. A return of income appears to have been submitted by him as an individual admitting an income of nearly three lakhs.
But at the time of the actual assessment by the agricultural income-tax officer, he claimed, a deduction in respect of about Rs. 87,000/- under Section 8, Agricultural Income-tax Act on the ground that he held certain of the properties whose income had been included in the return as trustee for the deity Lord Jagannatha of Puri, as Amrutmanohi. In support of his claim for deduction, he produced an order of the Commissioner of Hindu Religious Endowments. Orissa, declaring that the said properties are held under a public trust and also produced certain papers showing payment of contribution by the assessee to the Orissa Hindu Religious Endowments Board. It appeared however that the assessee has filed a suit O. S. 12/47 in the Court of the subordinate Judge at Puri, challenging the validity of the order of the Commissioner of Hindu Religious Endowments and contending that the properties are either secular or private debottar. That litigation is said to be still pending.
In view of the emergence of this fact from the evidence of the assessee's agent, the income-tax officer, while admitting the assessee to the benefit of Section 8 of the Act for an income of Rs. 70,000/- made it conditional on his foregoing the deduction, then tentatively allowed by him under Section 8, if in future the order of the Commissioner of the Hindu Religious Endowments is set aside and the properties are held by the civil Court to be secular or private debottar. The assessee having filed a written declaration undertaking to the above effect, the deduction was allowed by the agricultural Income-tax officer. When the assessment came up in appeal by the assessee to the Collector of Agricultural Income-tax, in respect of certain other matters, which were decided against him by the agricultural income-tax officer, the Collector was of the opinion that the course adopted by the income-tax officer so far as this deduction was concerned, was not permissible. He accordingly issued notice to the assessee in respect of this matter also, and after hearing him, set aside the order of the agricultural income-tax officer. He directed him to make a fresh assessment according to law as indicated by him in his order.
The Collector was of the opinion, as appears from his order, that the question of exemption under Section 8 on the footing of the properties being a public trust, would arise only when the assessee makes a positive declaration to the effect that the institution is a public trust. He added that if such a declaration is made, it was open to the agricultural income-tax officer to examine the question in all its aspects and arrive at a proper finding treating the order of the Endowment Commissioner as a piece of evidence. He was also of the opinion that the statement filed by the assessee before the agricultural income-tax officer to the effect that in case the subordinate Judge in the pending suit holds the properties to be secular or private debottar, he would forego the deduction allowed under Section 8, was not any such absolute declaration which called for an examination by the agricultural income-tax officer of the question whether the assessee was entitled to the exemption under Section 8 of the Act. It is not expressly stated in the Collector's order that on remand it was open to the assessee to file such a declaration without prejudice to his contentions in the regular suit and that on such a declaration being filed it was open to the Agricultural Income-tax Officer to examine the question of exemption under Section 8 afresh.
2. As against the above order of the Collector, the assessee filed a Revision No. 17 of 1951-52 before the Revenue Commissioner. The Revenue Commissioner while upholding the order of the Collector stated as follows :
'The party must affirm that he is a public trust and give evidence for the same. His affirmation must be clear and unequivocal. The onus is on the party to say that he is a public trust. He cannot say that he is an individual and that another authority has found him a public trust which is conditional on the civil Court decree. The party must himself be definite what he is. As he is not definite, the contention that he is a public trust cannot be held to be pressed. It is not necessary for the Agricultural Income-tax authorities to find out a case where it has not been pressed before them.'
As against this order of the Revenue Commissioner, the assessee made an application to the Member, Board of Revenue for a statement of the case and for referring the same to this Court under Section 29 (2) of the Act. That application has been rejected. Hence this application to this Court for a direction to the Member, Board of Revenue to state such a case.
3. A question has been raised that since what the Revenue Commissioner in revision has decided is only in affirmance of what the Collector in appeal has done, such an order cannot be treated as a prejudicial order and that there is no power in this Court to call for a reference. It has been suggested that our previous decision to the contrary in -- 'Sri Ram Chandra Murdaraj Deo v. Collector of Agricultural Income-tax', A. I. R. 1952 Orissa 281 (A) cannot be treated as good law in view of the Privy Council decision in -- Commr. of Income-tax, West Punjab, N. W. P. & Delhi Provinces, Lahore v. Tribune Trust Lahore', A. I. R. 1948 P. C. 102 (B), which was not then brought to our notice. It is unnecessary for the purpose of this case to decide that question. This application has been made under an apprehension that the course insisted upon by the income-tax authorities in requiring an unequivocal declaration by the assessee about the character of the properties concerned during the pendency of the litigation in the sub-Court, might seriously prejudice the material issue in that litigation. We see no room for any such misapprehension. It is permissible in law for the assessee to file a statement which may in terms or impliedly, admit a matter in dispute in income-tax proceedings without affecting the merits of the issue in the civil litigation, in order to make out that the admission is meant for the limited purpose of the income-tax assessment, it is open to him to mark it as without prejudice.
It has also been brought to our notice that by a recent amendment of the Orissa Agricultural Income-tax Act, that is, Orissa Act 1 of 1950, a new Section, 41 (A), has been inserted in the original Act, Sub-section (1) of which runs as follows:
'All particulars contained in any statement made, return furnished, or accounts or documents produced under the provisions of this Act or in any evidence given or affidavit or deposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or in any record of any assessment proceeding or any proceeding relating to the recovery of a demand prepared for the purposes of this Act, shall be treated as confidential and notwithstanding anything contained in the Evidence Act, 1872, no Court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.'
This appears amply to be a safeguard against the reception of any such admission made for agricultural income-tax purposes, as evidence in the pending civil litigation. We can see, therefore, no room for any apprehension in this behalf.
4. It is next urged that the orders of the Collector of Agricultural Income-tax on appeal and that of the Revenue Commissioner in revision preclude his claiming the exemption under Section 8, on a fresh statement filed by him and that their decisions are tantamount to the finding, that the assessee not having made any such unequivocal declaration for agricultural income-tax purposes is not entitled to claim any such exemption hereafter, during the pendency of the civil litigation. There appears to be room for this apprehension arising out of the language of the Revenue Commissioner's order in revision already quoted above. But the operative portion of his order is as follows :
'I, therefore, uphold the order of the Collector. The claim for deduction as a public trust cannot be accepted unless the applicant affirms that he is a public trust.'
So far as the appellate order of the Collector is concerned, the only purpose of his remand appears to be to allow the assessee an opportunity to make a fresh declaration if he so chooses, though as already above pointed out, he does not in clear terms state so. We think in the circumstances that his order must be construed as entitling the assessee to make such a fresh declaration if he so chooses for the limited purpose of the agricultural income-tax authorities when specifically asked, has not been able to show to us that that is not a fair and reasonable construction of the order of the Collector which has been in terms affirmed by the Revenue Commissioner.
5. In this view of the matter we do not find any reason for issuing a direction to the Member, Board of Revenue, to state a case to this Court. This application is accordingly rejected; but in the circumstances without any costs.
6. I agree.